- 82 - 7. Omissions and Distortions: the Majority Opinion The majority opinion makes a caricature of the findings it purports to adopt by ignoring some and distorting others.56 Some examples: First, on the meaning and application of the term “control”: neither “control” nor “lack of control” is a monolithic concept, nor do they occupy opposite sides of the same coin. Many elements or strands are braided into the ownership and control of a claim or cause of action. The question is whether enough elements of control over all or part of the claim are given up by the client who enters into a contingent fee agreement to make it inappropriate to include the entire amount of the recovery in the client’s gross income. The correct answer is to allocate the recovery in the first instance between attorney and client as their interests may appear in accordance with the terms of the contingent fee agreement. Petitioner gave up substantial control over his claim, and all control over the portion attributable to the contingent fee. Even if Smelker v. Chicago & N.W. Ry., 81 N.W. 994, 994 (Wis. 1900) is no longer good law under the Wisconsin attorney’s lien law and the Wisconsin ethical rules require an attorney to abide by a client’s decision to accept an offer of settlement, the 56 In so doing, the majority opinion creates a mismatch between findings of fact and opinion that is reminiscent of the centaur in Greek mythology.Page: Previous 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 Next
Last modified: May 25, 2011